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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> DP (Revocation of Lasting Power of Attorney), Re [2014] EWCOP B4 (11 February 2014) URL: https://www.bailii.org/ew/cases/EWCOP/2014/B4.html Cite as: [2014] EWCOP B4, [2014] EWHC B4 (COP) |
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MENTAL CAPACITY
ACT 2005
IN THE MATTER OF DP
42-49 High Holborn, London, WC1V 6NP |
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B e f o r e :
____________________
THE PUBLIC GUARDIAN |
Applicant |
|
- and - |
||
JM |
Respondent |
____________________
JM in person
Hearing dates: 4 February 2014
____________________
Crown Copyright ©
Senior Judge Lush:
The background
(a) appointed JM and her accountant to be her executors;
(b) gave 10% of the net proceeds of sale of her house in Orpington to Brookwood Cemetery and another 10% to the Russian Orthodox Church; and
(c) gave the remaining 80% of the net proceeds of sale of the house and her entire residuary estate to JM.
(a) appointed JM to be the sole attorney;
(b) did not appoint a replacement attorney;
(c) did not impose any restrictions or conditions on the attorney's authority;
(d) did not set out any guidance for him to follow;
(e) did not agree to pay him for his services as attorney; and
(f) named nobody who was to be notified when an application was made to register the LPA.
The application
(a) an order under section 22(4)(b) of the Mental Capacity
Act 2005 for the revocation and cancellation of the registered LPA made by DP; and
(b) an order directing that a member of the panel of deputies be invited to make an application for appointment as deputy to manage DP's property and affairs.
(a) On 12 January 2012 Jenny Payne, a social worker with Oxleas NHS Foundation Trust, contacted the OPG to express her concerns about JM's conduct. On New Year's Eve, DP had been found on a bus in a confused state and was admitted to hospital. JM had visited DP on the ward, insisted there was nothing wrong with her, and demanded that she be discharged immediately into his care. As a result the NHS Trust placed her under a safeguarding alert. However, as the power of attorney was an LPA for property and financial affairs, and because the NHS's concerns were of a personal welfare nature, the Public Guardian felt that he was unable to intervene.
(b) The attorney, JM, made a complaint to the Financial Ombudsman Service about the mis-selling of an investment product. DP's financial adviser had recommended that she transfer her investments from Legal & General to Aviva, and appears to have received a generous commission for giving this advice. When the Ombudsman adjudicated on the complaint, the value of the Aviva product was £138,811.97, net of an early exit charge of £4,293.45, whereas if the funds had remained with Legal & General, they would have been worth £177,418.29. On 2 August 2012 the Ombudsman awarded DP compensation in the sum of £38,606.32.
(c) On 15 February 2013 JM sold DP's house for £165,000 and placed the net proceeds of sale in a high interest account at Barclays Bank in his own name. When he became aware that the OPG was investigating his actions, he made arrangements for the account to be registered in DP's name.
(d) On 4 March 2013 John Stevenson, a senior risk consultant at Aviva UK Life Financial Crime Team, contacted the OPG to express concerns regarding the encashment of DP's investment bond. On several occasions JM had requested that either the bond be transferred into an account in his own name by way of a gifting arrangement or, that it be transferred into a bank account in DP's name. Aviva refused to act on JM's instructions and, in effect, it froze the bond, which still forms part of DP's estate.
(e) Following the tip-off from Aviva, the Public Guardian commenced an investigation into the attorney's management of the donor's property and financial affairs.
(f) It transpired that in November 2012 JM had made a gift to himself of £38,000, which was roughly the amount of compensation that the Ombudsman had awarded to DP as a result of his intervention.
(g) JM was unable to explain the purpose of a banker's draft for £1,500 which was drawn on 7 June 2012.
(h) He was also unable to account for numerous cash withdrawals from ATMs from March 2012 to March 2013 totalling £8,520.
(i) JM claimed that he had spent £10,300.70 on improvements to DP's house in order to make it presentable for sale, but he was unable to produce any receipts to verify this claim. It emerged that £7,300 of this sum represented a salary of £20 a day that he had decided to pay himself for 365 days' house clearance and rubbish removal. He also awarded himself a salary of £1,040 for twelve months' gardening at a rate of £20 a week.
(j) On 6 July 2012 JM paid a deposit of £599 from DP's funds to lease a Motability vehicle – a Nissan Qashqai 1.5 dCi - for his wife for three years. He then withdrew £55 a week from DP's funds to hire the vehicle, being an equivalent sum to the mobility component that his wife receives as part of her Disability Living Allowance. He also paid for the petrol for this car from DP's funds at a rate of about £10 every two or three days. JM explained that DP was financing the lease of the vehicle because it had been acquired for her benefit so that he could take her on trips and to hospital appointments and so he could use
it whenever he visited her property.
JM's witness statement
"I have known DP since 2006 and we became very good friends. She had relatives, but no one seemed to bother with her. We used to have her over for Christmas. She used to stay a few days with us. She was well known to all my family. They all like her and she felt part of the family.
DP would go on holidays with us and have days out with us. She always enjoyed them.
DP confided in me quite a bit and gave me specific instructions of things she wanted me to do should anything happen to her. I have done my best to fulfil her wishes.
I was always available day and night for her, when she was in her own house. She would ring me when she had any problems, even at night, such as heating and electrics, etc.
She had Christmas with us in December and had another Christmas in January with her church, which was Russian Orthodox.
On 31st December 2011, DP was found by police wandering around the streets where she lived. The police took her to Farnborough Hospital Kent, when she was seen by doctors, who said there was nothing wrong with her. The hospital let her out late evening where she was getting on and off buses parked up in the hospital grounds. She was then taken to Queen Mary's Sidcup. We were not aware of this at the time.
This was now 1st January 2012. After trying to contact her both by phone and visiting the house, I was getting worried about her and my wife and I reported her missing to the police. There are two statements in the bundle explaining this and other accounts of what I have done with DP's money, clearing her house out and eventually selling it. Finding a suitable home for her.
Aviva has misled the Office of the Public Guardian by giving false information to them regarding transfers of bonds which I asked for to put into a high interest a/c in Barclays
Bank. They claim there was over £4000 loss if they were cashed in early, which as I understand from the financial adviser, this is not so. I have paperwork confirming this because of misdealings with DP's bonds, which went to the Ombudsman, and DP was awarded compensation.
I object to the Office of the Public Guardian investigating me and my wife about potential fraud and money laundering. I object to investigation concerning DP before I knew her in 2005. I know nothing about this. The social worker asked for the police search on me. Police felt there was no evidence to pursue any investigation (10.1.12) so why am I still being investigated (9.4.13)?"
The hearing
o Marion Bowgen, on behalf of the OPG; and
o JM and his wife, who were accompanied by Marian Wellings of the Personal Support Unit.
"By signing below, I confirm all of the following:
Understanding of role and responsibilities
I have read the section called 'information you must read' on page 2 of this lasting power of attorney.
I understand my role and responsibilities under this lasting power of attorney, in particular:
- I have a duty to act based on the principles of the
Mental Capacity
Act 2005 and have regard to the
Mental Capacity
Act Code of Practice
- I can make decisions only when this lasting power of attorney has been registered
- I must make decisions in the best interests of the person who is giving this lasting power of attorney
- I can spend money to make gifts but only to charities or on customary occasions and for reasonable amounts
- I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request."
AVIVA Bond | 147,000.00 |
Barclays Platinum Banking Current Account | 5,884.69 |
Barclays Essentials Savings Account | 0.08 |
Barclays Everyday Saver Account | 128,111.62 |
£280,996.39 |
The legal framework
"The court may –
(a) …
(b) if P lackscapacity
to do so, revoke the instrument or the lasting power of attorney."
"Subsection (4) applies if the court is satisfied -
(a) …..
(b) that the donee (or, if more than one, any of them) of a lasting power of attorney –
(i) has behaved, or is behaving, in a way that contravenes his authority or is not in P's best interests, or
(ii) proposes to behave in a way that would contravene his authority or would not be in P's best interests."
(1) the attorney has contravened his authority; or
(2) the attorney has not acted in the donor's best interests; and
(3) the donor lacks capacity
to revoke the LPA.
The donor's capacity
"I explained the LPA to DP. I informed her that she had nominated someone and asked her to tell me who that person was. She could not. I then gave her the first name of the attorney. She was unable to match his surname. I then gave her his full name and asked her if she could tell me that it was the person she had nominated. She said 'It sounds familiar – but I don't know who he is.'"
"Moving on to the second stage Functional Test:
Understand
DP was able to understand the meaning of the LPA but did not understand the implications of the LPA in any meaningful sense.
Retain
She did not have the ability to retain information. I demonstrate this in that I reminded her who she had nominated and when I returned to this information she was unable to recall this 15 minutes later.
When I presented her with information such as who JM was, why she had chosen him or who else could act as her attorney she was unable to acknowledge or process this information and use
it in any meaningful way.
Communicate
Although the donor has speech, she was unable to assimilate the information that I had given her in order to communicate an opinion of the LPA.
I am, therefore, able to conclude that it is my professional opinion that DP does not have mental capacity
in relation to a decision about revoking or suspending the LPA.
"We had concerns regarding [DP's] mental capacity
to manage her finances and to sign documents for LPA and change the contents of her will prior to her coming to the notice of the
mental
health services."
The attorney's conduct
Addendum on ademption
(1) Re Dorman [1994] 1 WLR 282, a decision of David Neuberger QC (as he was then) in our Chancery Division.
(2) Re Viertel [1996] QSC 66; [1997] 1 Qd R 110; a decision of Thomas J in the Supreme Court of Queensland, which was later reported at [2003] WTLR 1075.
(3) Shirley Anne Banks v National Westminster Bank Plc & Another [2005] EWHC 3479 (Ch), a decision of His Honour Judge Rich QC in our Chancery Division.
(4) Gordon Turner v John Turner and others [2012] CSOH, BAILII: [2012] ScotCS CSOH_41 , an opinion of Lord Tyre in the Outer House of the Court of Session in Scotland, dated 7 March 2012.
(5) RL v NSW Trustee and Guardian [2012] NSWCA 39, a decision of the Court of Appeal of New South Wales, handed down on 12 March 2012, in which Campbell JA presented a comprehensive and scholarly analysis of the previous authorities on this issue.